Use of drone strikes by U.S. a hazy legal case
by Timothy J.A. Passmore, Editorial Columnist
Feb 15, 2013 | 422 views | 0 0 comments | 4 4 recommendations | email to a friend | print
It would have been difficult for President Obama to avoid discussing the U.S. military’s drone program in Tuesday’s State of the Union Address. The issue has experienced years of opposition both at home and abroad, but has received heightened criticism in recent weeks.

The president’s promise to be more transparent with the use of drones may be a positive move, but it is far from enough to pacify the many who believe it to be an illegal and inhumane military tactic.

The U.S. military has used drones since 2004 with two express purposes: to gather intelligence and to eliminate targets thought to be associated with al-Qaida. Surprising many, the program was expanded under President Obama, a move that appeared inconsistent with his more congenial approach to international relations and a desire to repair America’s reputation abroad.

While the government refuses to release exact numbers of strikes and related fatalities, or evidence justifying such attacks, the New America Foundation estimates some 2,000 to 3,000 people have been killed in drone strikes in Pakistan since 2004, where many al-Qaida members and affiliates are thought to have relocated from Afghanistan. An additional 1,000 deaths are estimated in Yemen, the operational base of al-Qaida in the Arabian Peninsula. The study suggests that as many as a quarter of those killed by the strikes were not militants.

Recent controversy has been generated with the release last week of a secret Justice Department memo, shedding greater light on the program. The memo states that the use of lethal force through drone strikes is justified against U.S. citizens in other countries if operating on behalf of al-Qaida or its affiliates.

Critics of drone strikes have previously suggested that the tactic not only violates the sovereignty of the country in which the attack happens, as well as the laws of war and peace, but also the rights of the target, bypassing the judicial process and effectively executing suspected militants with no trial.

But this new revelation generates greater concern. The use of such attacks against U.S. citizens clearly appears to violate that individual’s constitutional right to due process of the law. If this seems more like a hypothetical contingency rather than an active strategy, one should remember that Anwar al-Awlaki, who was killed in a 2011 strike in Yemen, was himself a U.S. citizen. In fact, he is one of a number of U.S. citizens targeted by such attacks.

Perhaps the most disturbing element of the memo is its hazy justification for such attacks. It suggests that lethal force may be used where such individuals “pose an imminent threat to U.S. security,” yet at the same time suggests that clear evidence of an imminent threat is not necessary to proceed. Translation: the government can effectively justify any act it desires in the name of security, a running theme in the ongoing War on Terror.

It is difficult to build a legal case for the drone strike program as far as international law is concerned. Sending uninvited drones into another nation’s airspace is problematic enough. But killing suspected militants, as well as innocent civilians, under the auspices of war, or at the very least, self defense, gains little traction with the rest of the world. Pakistan has repeatedly complained of U.S. drone strikes in its territory, of which there have been around 350 since 2004. Only last month, the United Nations launched an investigation into the legality of the program with results due later this year.

However, as long as national interest and security remain a priority for nations, international law has limited jurisdiction. The invasion of Iraq in 2003 reminded the world that condemnation from the UN and the international community cannot ultimately prevent the U.S. from doing as it desires.

The Obama administration has done much good in terms of foreign policy and multilateral diplomacy over the last four years, yet the continuation of the drone program further calls into question his collection of the 2009 Nobel Peace Prize. U.S. troops remain in Afghanistan, Osama bin Laden was killed in questionable circumstances, and Guantanamo Bay remains open.

Suspending, or at least seriously drawing down drone strikes, may be a necessary move to prevent further alienating other countries and making the president’s desire for a “new international climate” something that can be taken seriously.